Friday, October 31, 2014

How are we to assess claims that Mary Burke was forced out of her own family's business in 1993?

The Journal Sentinel editorial board dismisses it all by telling us to "consider the source." I have applauded the editorial board for seeking to promote a diversity of opinion on their page. Here is, as they say, another view.

First, the board trashes the Wisconsin Reporter, a nonprofit news organization, because it has a conservative bent and is funded by the Bradley Foundation. (Yes, yes, so is the nonprofit I run. So are half the charities in Milwaukee.)

The attack on the Wisconsin Reporter is completely unfair. First, I have not noticed the editorial board dismissing the work of other nonprofits - say the Brennan Center, the Center for Media & Democracy, the League of Women Voters - simply because these groups have an ideological bent. It shouldn't. The fact that these groups have a perspective may effect the issues they emphasize and what they have to say about them. It doesn't mean that they make things up.

I know Matt Kittle, who runs the Wisconsin Reporter and have spent countless hours discussing a variety of stories with him. Matt does not run things that he has not confirmed in accordance with standard journalistic practice. He is as much a professional as the reporters at the Milwaukee Journal Sentinel.

The fact that the Wisconsin Reporter is a conservative outlet is relevant in assessing its work, but it is hardly a basis for dismissing what it has to say. It's report stands on its own merits.

In assessing the report, the editorial board attacks people rather than evaluating facts.

I would have been skeptical of the report about Burke if the only source was Gary Ellerman, a human relations person who was himself discharged from Trek and who now chairs the Jefferson County Republican Party. In addition, there have been allegations that he is no more measured and careful in his political expression than some of the people that have been added as bloggers at Purple Wisconsin in the past year.

This is not to say that Ellerman should be dismissed out of hand. Nothing about his background brands him as a liar. But if he was the only source, I would have conceded that the question is so unsettled as to be a minor story. I don't deny having a dog in the fight but I try very hard not to jump on allegations from my side that are undersupported.

But Ellerman wasn't the only source. Others confirmed what he said and the report became more plausible when it was corroborated by the company's former COO. Even allowing for the fact that Tom Albers gave the princely sum of $ 50 to Scott Walker, his confirmation of Ellerman's story makes it much more credible. The editorial board's ad hominem dismissal of Trek's former COO - "consider the source" - reads more like campaign literature than fair analysis.But, for the editorial board, Albers is, as David Haynes tweeted, "discredited" because he is "vested" in the race. By that he means no more than Albers - who gave Walker's campaign the price of dinner for two and a couple of margaritas at La Perla - presumably wants Walker to win.But, by that standard, everyone who has had anything - good or bad - to say about Burke's tenure at Trek is "vested" in the race. No one can be believed. Yet the editorial board accepts Burke's claims of success in business - even though they are unsubstantiated by anyone who is not "vested in the race."

There is no end to this "consider the source" calumny. Burke's family stands by her - although they provide no detail of what actually did happen and won't provide documentation of her claims regarding her successes at Trek. Shouldn't we "consider the source?" Are they any less "vested in the race" than Ellerman or Albers? Members of the Burke family understandably don't want to hurt a relative and, to be honest, stand to gain quite a bit by having one elected Governor. There is, to be frank, less reason to believe them than there is to disbelieve Albers. As far as we know, he has no family or financial interest in the matter.

Having said all that, I might be less inclined to credit the story if Burke's own version of the events didn't tend to confirm it. Here's where we get into facts rather than people.

Burke now says that her position was "eliminated" because of "downsizing." You don't "eliminate" the job of someone who has, as Burke claims, been a phenomenal success, particularly if she's a member of the family that owns the company. You promote her. But that didn't happen. Of course, it's possible that she walked away from a company that still wanted her - even as it eliminated her job - but that is hard to believe.

Finally, the editorial board stoops to sexual politics to dismiss, rather than engage, Burke's critics. Certain sources from within Trek say that she acted like "a pit bull on crack." The editorial board plays the gender card to rule this criticism out of bounds. To them, it sounds "strikingly similar to the way other strong women have been portrayed once they reach positions of authority."

But it is not just women who are criticized for being overly authoritarian and demanding. In our fallen world, the sad fact is that there are bad managers and one of ways in which people manage poorly is to exalt themselves and be dismissive of their subordinates. One of the ways in which people manage poorly is to demand that their subordinates do what cannot be done, relieving the manager of the obligation to figure out how an organization's objectives can actually be achieved. There is no reason to think that women are incapable of making these mistakes. (Indeed, wouldn't it be sexist to believe they are not?) In dismissing this criticism, the editorial board is just as guilty of stereotyping as the "sexists" who they purport to oppose.

I don't know if this criticism of Mary Burke is accurate. I am sure that a dime store sexual politics won't help us answer the question.

Normally, I'd prefer a campaign limited to issues. But the Democrats have chosen to run someone for Governor whose resume, regardless of whether she was forced out in 1993, is astonishingly thin. To bolster the absence of a record , she has made claims about her long ago tenure at Trek that cannot be verified. Under those circumstances, this story matters and it can't be dismissed by attacking those who tell it.

So what's the truth? My own sense - trying to reconcile what Albers says with what Burke and her camp does and does not say - is that no one said "you're fired," but it was "agreed" that she should go and do something else.

But, as I'll explain in my next post, even the most favorable reading of her version of events undermines the case for Burke as Governor.

Tuesday, October 28, 2014

Here's a bit of free advice. When economists - or any social scientist - tells you that "studies" show something, remain skeptical. As a general rule, there are almost always contradictory studies and those that purport to "show" some real world cause and effect usually do not.

This op-ed by Mike Rosen, an MATC instructor with decidedly heterodox views of economics, The sayt that, the science is "in," minimum wages do no harm.

But that's just wrong. Some studies show no loss of employment. Othersdo. Indeed, a recent study by the John K. MacIver Institute for Public Policy shows that an increase in the minimum wage to $15/hr would cost 90,000 jobs.

This shouldn't surprise us. Basic theory tells us that the impact of a minimum wage increase will be complicated. In almost all places and at all times, some workers will make more money, some will lose their jobs, some will keep their jobs and work fewer hours, others will be made to work harder and some will never be hired. The return on labor saving technology will increase. There will be winners and losers and there is no guarantee that the poorest of low wage workers (not all low-wage workers are poor) will be ones who are helped.

Because things other than the minimum wage will be affecting unemployment and low-wage job growth, it is difficult to figure out - even after the fact - what has happened. To simply say, well, we raised the minimum wage and employment didn't decline may or may not mean that there are no fewer workers today than there would have been had the minimum wage not increased.

The idea that politicians - or even economists - can find the "sweet spot" where benefits exceed costs seems implausible. Indeed, where this inscrutable "sweet spot" might be will differ from place to place, time to time and industry to industry. Even if "we" decide that we know what the benefits and costs are and the benefits of any particular minimum wage increase exceeds the cost, "we" are not the ones that have to pay those costs. "We" are not the sixteen year old who doesn't get her first job at McDonald's or the grandmother who loses her job - or has her hours cut - at WalMart.

This is why increasing the minimum wage is an inefficient and counterproductive way to help low income workers. If we want to help the working poor, things like the earned income credit or food stamps seem less likely to have harmful effects.

Rosen says that minimum wage employers are big companies who are somehow immune from concerns about the marginal cost of labor exceeding its productivity. This, not to put too fine a point at it, is preposterous. fact, Rosen can't actually believe it. Even he would concede that there is an increase - say to $15 or $20 or $30/hr - at which the "productivity of labor" would be lead to declining - even catastrophically declining - rates of employment.

What he really means is that some more modest increase will not have a negative impact that he is not willing to accept. He seems to base this on an assumption that national chains, unike "Mom and Pop" stores, are either high margin businesses who can afford to lower their margins or have market power that would permit them to pass increases on to customers.

I doubt that. Wal-Mart, to take an example, is successful because it is a low margin business. It works because it has figured out how to provide acceptable (if lower quality) goods at astonishingly low prices. If you raise its costs, it will figure out other ways to lower them. This is because it has little margin to erode (as rich as they are, the Waltons are not going to keep open stores that lose money) and little room to raise prices - if Wal Mart charged Target prices, no one would go to Wal Mart. The latter's customer loyalty is rooted in little but price.

The idea that you can increase the cost of hiring low skilled workers without increasing the demand for them is like saying that you can raise the price of a good - even a popular one like an iPhone 6 - without dissuading some people from buying it. There are, I suppose, cases where this could be true - where, as economists say, demand is price inelastic - but it almost never is. I doubt that the demand for counter workers at Burger King or greeters at WalMart are among those cases.

For example, let's say that the minimum wage were increased to $ 10.10/hr. The cost of employing those who actually earn the current minimum - a relatively small number - would increase by almost 40%. Does anyone really believe that this would not decrease the demand for such workers? Is it even remotely likely that such an increase would not create powerful incentives for employers to find ways to employ fewer of them. It is those who actually earn minimum wage who are most likely to be hurt.

So why do our friends on the left work so hard to avoid the obvious. First, increasing the minimum wage is politically popular. People support it because it does not seem to cost them anything (unlike welfare benefits) and they imagine that the pinch will be felt by rich people who "can afford it." Second, those who lose when minimum wages arise are invisible. They tend to be people who did not get something - a job or increased hours - that they otherwise would have. No one knows who they are. Finally, for these reasons, its free "generosity." It is a chance to put on the cloth of righteous and appear magnanimous without having to pay for the privilege.

Don't believe me? Here's one more thing to ponder. Democrats applaud Mary Burke for announcing that she knows, as a business woman (someone who worked in the family business before apparently dropping out of the work force in 2007) that minimum wage hikes will not hurt business. Yet her family business - the same one from which she derived millions to spend on her campaign - shipped jobs to China - where it does not pay US minimum wages - to lower labor costs.

I am not about to criticize Trek for that. But it lies ill in the mouth of Mary Burke to advocate for imposing costs on others that she and her family would not accept for themselves.

Over at Right Wisconsin, I wrote about some of the legal issues presented by what appears to be an intentionally false ad ran by the Mary Burke campaign. Since I wrote, Politifact (certainly not in response) rated the ad as "false." As a First Amendment absolutist, I am not about to call for anyone to be prosecuted. While I think it's too simple to say that there is a constitutional right to lie, I think that the circumstances under which the state can punish or restrict political speech because it is false should be essentially nonexistent.

But the voters can take notice and what bothered me about the Burke ad is that it attacked Walker's character. It's one thing to lie or mislead about the budget, jobs, abortion and equal pay - Burke and her allies have done all of that - it's another to lie about your opponent as a person. It strikes me as a more serious form of sin.

The other thing that is noteworthy is the frequency with which one is able to point out that Walker attack ads are simply not true. No, Walker didn't abolish "equal pay" laws. We don't have a budget deficit. Job creation is not "worse" during the Walker administration (just the opposite if fact). Walker and the legislature have not mandated transvaginal ultrasounds.

What type of Governor would Mary Burke be if she thinks this type of thing is OK?

Some of this is undoubtedly the residue of Saul Alinsky's odious philosophy for the political left. If one is head over heels self righteous about using the coercive authority of the state to promote equality or some notion of fairness, hum drum concerns about things like honesty and intellectual integrity seem like fiddling while Rome burns - roadblocks to the revolution.

But I think that some of it is Mary Burke. I doubt that she is a bad person and I understand that politics ain't bean bag. But the larger problem is not what she does but that she is simply not there. She seems not only like an empty vessel, but a spectator of, rather than participant in, her own campaign. There is no there there and some pretty bad things have filled the vacuum.

Of course, what kind of governor Mary Burke will be doesn't matter. As recent polls have shown, no one is voting for her. They are voting for or against Scott Walker. But here's the thing.

If Walker loses, we get Burke. How can anyone be comfortable with that? The best thing that could happen for the Democrats in this state is for her to lose. She will be a disaster that will lead to a Governor Vos, Fitzgerald Duffy or Vukmir in 2018. (I chose those names randomly so no offense intended for anyone else.) That GOP victory won't be permanent, but it may last for quite some time.

Monday, October 27, 2014

Fellow Purple Wisconsin blogger Jay Miller raises the "appearance of partiality" in our judiciary, noting the way in which judges disagree on controversial issues such as voter ID. I sympathize with the reaction. It brings to mind an exchange I had with a student a few years ago.

I was teaching Civil Procedure. We were discussing divisions in the Supreme Court on a somewhat arcane point about pleading when a student lost her religion. "These are some of the smartest lawyers in America," she said, "why can't they agree?"

"Welcome," I said, " to the legal profession."

Mr. Miller is a lawyer - so I do not attribute these attitudes to him - but he begins his post with what my favorite professor from the first year of law school, leftie Duncan Kennedy, called "lay naïveté." "The law is the law," they say.

And mostly it is. But sometimes it's not. There are cases in which the law is what legal academics call "underdetermined" (they say this because it sounds more sophisticated, and it sort of is, than saying "uncertain"). The idea is that established principles do not yield a clear answer. In such cases, judges have discretion and the way in which they exercise that discretion will reflect their pre-existing beliefs about the way in which the world works and how our Constitution, common law and rules of statutory interpretation should approach it.

Once you realize this, it's not hard to see how, say, Judges Rudy Randa and Lynn Adelman, would come to different conclusions. One judge is suspicious of progressive designs that seek to perfect the world. The other is drawn to them. Both will understand when they have no room to maneuver, but, when they think that they do, each will reach different results.

But that recognition can lead us to a different problem - what Professor Kennedy called "lay cynicism" - and to which Mr. Miller's post also alludes. Seeing that judges sometimes decide cases based on their political preferences, the public concludes that they always do. This is not true. The public thinks it to be so because it's attention is normally directed to cases in which these philosophical differences are more or less free to express themselves. This is a small fraction of all cases.

Mr. Miller says that he'd like to read a story about cases in which judges decide cases in a way that is contrary to their political preferences. One commenter to his post thought that Judge Richard Posner's vote against voter ID was an example because Posner is "famously conservative."

Actually, he's not. He may have been once, but Posner is now "famously liberal." I could say more about that. Posner has been, more than anything else, a pragmatist and relativist - someone who doesn't believe in overarching principles. There is value in such approach, but the danger is that it becomes a crass utilitarianism in which there is little difference between one's political predilections and the law. I would suggest that Judge Posner is an example of the way in which the line between law and politics blurs, rather than an exception.

But I would have no problem finding many examples of what Mr. Miller is looking for. In the recent Act 10 cases, Justice Patrick Crooks used his concurrence to express his support for unions. The opinion had little to do with the law and everything to do with Justice Crooks' politics. One might criticize him for using a judicial opinion to express those views, but he did vote to uphold Act 10. He did it because there really was no serious argument for Act 10's unconstitutionality.

I could go on. Wisconsin's liberal justices voted to reject a procedural challenge to the constitutional amendment banning same sex marriage. Its conservative justices voted to reject a challenge to the state's domestic partnership bill. Despite what you may hear, conservative justices vote to uphold the claims of criminal defendants and liberal justices vote to reject them.

On the United States Supreme Court, the Obama administration has lost an extraordinary number of unanimous decisions. The liberals - and, make no mistake about it, Justices Ginsburg, Breyer, Sotomajor and Kagan are well to the left of the legal center - have voted against it. Conservatives voted to dismiss review of the Ninth Circuit's decision striking down California's constitutional amendment limiting marriage to one man and one woman because they thought the petitioners lacked standing.

One commenter to Mr. Miller's post cites Judge Richard Posner, who he describes as "famously conservative" but who voted to overturn voter ID, etc. Judge Posner is not "famously conservative." He may have been once, but he has moved sharply to the left. Judge Posner was always a tentative - an somewhat unusual - "conservative." His judicial philosophy is largely a sort of utilitarianism that is highly susceptible to his individual assessment of the merits of the question before him. Thus when his political views change, the outcomes change.

In this, his underlying approach is quite compatible with Professor Kennedy, one of the giants of Critical Legal Studies and my left-wing (and quite good) torts teacher.

Thursday, October 16, 2014

What is the first thing to know about the Wisconsin Jobs Now! and the demand that the Governor unilaterally raise the minimum wage using the "authority" supposedly conferred by Wis. Stat. sec. 104.02.

It seems a just a tad partisan and hypocritical.

I run a 501(c)(3) and I understand that, if your organization believes that left-leaning policy solutions are in the public interest, your activities will tend to lend comfort to Democrats and vice versa. That doesn't make your activities "partisan" in a way that runs afoul of the tax laws or that could conceivably trigger campaign finance regulation.

But sec. 104.02 has been on the books for a long time. Did WJN - or like minded groups (I'm not sure how long WJN has existed) - ever call on Governor Doyle to unilaterally raise the minimum wage? The minimum was raised in the Doyle years (as it was during the Thompson administration) but certainly not to the "family supporting" level that WJN calls for.

Here are a few things to keep in mind.

First, were Governor Walker or any other governor to use sec. 104.02 to unilaterally raise the minimum wage, there would be one serious lawsuit. Since enacting sec. 104.02, the legislature has subsequently fixed a minimum wage. For the Governor to conclude that increase is not "enough," would raise separation of powers. Even if that weren't so (or it could somehow be discarded, say, because it could be argued that the legislature really intends the Governor to supersede its enactments), sec. 104.02 does not articulate an intelligible principle on which a "living wage" could be determined. A wage conducive to some one's "welfare" is no guidance at all. If acted upon, sec. 104.02 would be an unconstitutional delegation of legislative power - and, no, the legislature can't decide to do that.

Second, it is unclear that, by its terms, sec. 104.02 could even be invoiced to raise the minimum wage. I don't doubt for a minute that $ 7.25/hr is not a lot of money. It would certainly be tough to support anyone but yourself on that income - and even a single person will struggle if that's all she has to live on.

But sec. 104.02 doesn't say that the requisite wage should be enough to support a family. To the contrary, the statute only says that a worker must be paid a wage conducive to "his or her" welfare. As little as it is, a full time job paying $ 7.25/hr results in an income above the poverty level for a single person. Government benefits will, moreover, significantly supplement those earnings. While it is certainly the case that a low-income worker may have children to support, sec. 104.02, even read for all its worth, does not address that problem.

Third, that brings us to the real problem with all of this. A minimum wage job - or even one that pays slightly above the minimum wage - won't buy a middle class standard of living. But WJN and similar organizations believe that the only thing that stands in the way of more money for low wage workers is to demand it - to say "yes" to a more than 100% increase in the minimum wage as if it were some law of nature that every one's labor is worth at least to $15/hr to whoever has hired him.

But there isn't. If you prohibit anyone from working for less than $15/hr, there will be certainly be some workers who benefit. Others will lose their jobs, see their hours reduced or never be hired in the first place. The return to labor saving technology will increase and more workers will be replaced by machine. Prices will go up and business start-ups will go down.

Proponents of minimum wage increases like to think that these adverse impacts will somehow be mitigated by the supposed "multiplier effect" of more spending by low income workers. But since the minimum wage imposes costs - on consumers, the newly unemployed and business owners - a minimum wage increase does not result in more spending. It just shifts it around. Maybe this "shifting around" of spending will result in more economic activity, but that seems unlikely.

Whether an increase in the minimum wage makes everyone - or even poor persons better off (most minimum wage workers are not poor) - is a question that requires recognition of its costs. WJN's campaign - which is nothing more than an assertion of the self evident - ignores them. Demanding the world you want does not make it possible.

Finally, I'll end with a observation for my fellow conservatives. We are right to note that a minimum wage increase might well hurt more people than it helps. We are right to say that distorting labor markets is not way to help poor people. But we ought to acknowledge that, once we recognize that the marginal value to an employer of certain workers will not exceed a relatively low level, we need to also recognize that this is not the same as the value of those workers as people. Some folks are going to need help - preferably on a temporary basis and from voluntary sources - so there must be some sort of safety net. Raising the minimum wage, however, does not appear to be a very good way to provide it.

Wednesday, October 15, 2014

One of the oddest arguments made about school choice is, as argued here, that it is a "subsidy for the wealthy ..." and somehow enriches ... well, I'm not sure who.

In a recent Milwaukee Journal Sentinel column, Christian Schneider pointed out that money sent to educate choice students in private schools do not necessarily "cost" the public schools anything. This is because, if the choice program were eliminated, not only tax dollars would return to the public schools. So would the students. Depending on what it would cost the public schools to educate these students, the end of choice would not benefit public schools at all.

Properly managed public schools should lose money only if the marginal cost of educating students lost to schools participating in the choice program exceeds the revenue lost as a result of their departure. Poorly managed public schools with large fixed costs - say districts with huge unfunded legacy costs paying substantial sums to persons who no longer work there or who have large entrenched bureaucracies - may lose money. But that's because those districts need state revenue in excess of the cost of educating current students to pay retiree payments or administrators now serving fewer students.

This is incontestably true, but seems to be a hard concept for choice critics to understand or, at least, to respond to. So the argument is often made that school choice is some sort of "privatization" (it is in one sense, but not in another) that "enriches" somebody. Foundations such as Bradley, Walton or DeVos that spend a lot of money to promote parental choice are said not to "care about" poor kids although, if they don't, just who they do care about it and why they are spending millions of dollars to direct money to poor families is unclear.

It is certainly not students and their families are enriched. In Wisconsin, a family's income must be at the poverty level to participate in the statewide program and no more that 3 x the poverty limit to participate in Milwaukee. It's certainly not school operators. Asking schools to educate kids for amounts well below the average spent in public schools is not a recipe for building wealth. (To be sure, one may be able to find examples of school operators misusing funds but public funds get misused as well. Sadly, such is human nature.)

One might make the argument that taxpayers have been "enriched" because children in choice schools receive an education for less than they do in public schools. Although evidence is limited, these kids seem to do at least as well if not betteron some measures.

Tuesday, October 14, 2014

So Brad Schimel is being criticized for saying that he would have felt it his duty to defend bans on interracial marriage in the 1950s. I would not have answered the question the same way but the attacks reflect a misunderstanding of the law and the office that Schimel is running for. To his credit, he understands both. Here is what you need to know.

First, he was not asked if he would defend a ban on interracial marriage today. He certainly would not. Such a ban was declared to be unconstitutional in 1967. No legislature would pass it today and no competent lawyer would defend it. Indeed, virtually every lawyer under the age of 72 was trained after this issue was resolved. Thus, if you hear attacks on Schimel that say he "wants" to "go back" to the 1950s, they are either demagogic distortions or based in a misunderstanding of the question.

Second, the role of the Attorney General is not to defend only those laws that he or she disagrees with. It is not to act as a judge who weighs the arguments and decides which of them are right. His or her job is to defend the state as long as one can make a colorable legal argument in its favor.

So the question that was put to Stimuli was effectively this. Even though we all know that there is no colorable argument that a ban on interracial marriage is constitutional from any time between 1967 and today, what would you have done had you been asked to defend such a ban in the 1950s?

The easy thing would have been to say he would not have defended it. but Schimel - who certainly doesn't oppose interracial marriage - took the question seriously. He did so because he has criticized Susan Happ - who has essentially said that she won't defend any law that she thinks should be struck down - for failing to understand what the state's lawyer is supposed to do.

So what should Schimel have done in the 1950s?

In answering that question, his personal feelings - either as they actually exist in 2014 or as one imagines they might have existed in 1954 - are irrelevant. If he had been the AG in 1954 and asked to defend a ban on interracial marriage, he would have had to survey the law at the time and see if the state's position in favor of a ban was clearly unconstitutional. He would have found no Supreme Court decision holding that a ban on interracial marriage was unconstitutional. Unfortunately, he would have found an 1883 decision holding that it was not. So he would have had to decide whether he could make an argument that case should be overturned.

Maybe he would have concluded that he could. Maybe he would have decided, for example, that the decision in Brown v. Board of Education ended the doctrine of separate but equal in areas other than public schooling. Ironically, he might have been impeded in so concluding by the way in which then Chief Justice Warren wrote Brown. Warren, wrongly in my view, seemed to base his decision on social science evidence regarding the psychological impact of school segregation rather than a far more robust rule of no racial decision-making ever. (The problem, you can see, is that you risk losing your principle of racial equality if the psychological evidence turns out to be wrong or inapplicable in particular context.)

As a constitutional lawyer, I might have said that I would have relied on Brown to argue that existing precedent should be overturned. If I wanted to be more careful, I might have refused to enter the way back machine and say what I would have done had I been born in 1906 instead of 1956.

As a prosecutor, Schimel answered the question by resort to the default position. He would have to defend the state's laws. This is mostly true. Whether it actually would have been true in 1954, would require an analysis that Schimel has not had an opportunity to make. His instincts were consistent with the nature of the job he is running for. His answer says nothing about his attitude toward race. It does say something about how he views the law and the job that he is seeking. And what it says about that actually reflects well on him.

Sunday, October 05, 2014

Continuing the theme of seeing what we want to in art, we
also saw Wicked at the Gershwin
Theatre in New York. Lavish production combined with a heavily troweled musings
on moral ambiguity. One of the themes is the way in which ineffectual political
leaders (here, the Wizard) create scapegoats (Elphaba and the animals) to
deflect attention from their own failings.

Standard commentary has drawn a parallel between
demonization of the Witch of the West and talking goats (see what I mean by
heavily troweled - one of the scapegoats literally is a goat) and the war on
terror. The wizard is Bush, man !

But I see it differently. Maybe the Wizard is Obama and the
scapegoats are Republicans and conservatives accused of crimes that they did
not commit.

The silly meme of a “War on Women” (which is either
uninformed or unserious) and the enflaming of racial passions as an electoral
strategy seem like classic instances of scapegoating to me.

Nothing Obama has tried has worked very well. Six years into
his administration, we are mired in a historically weak recovery. The best that
can be said about the Affordable Care Act is that it might be a nonevent and,
if so, only because most of its supposedly “essential” provisions have not been
implemented and the cost of subsidies has not yet hit home. The reset on our
relations with the world has done nothing but reverberate against us. Hopes for
a transformative presidency – one that would heal the sick and still the waters
– have been mocked by events.

So, just like a Wizard without magic, our President without
hope must find some one to blame. This explains the hysteria – the sophistry –
behind these themes. As Jonah Goldberg puts out, “women’s health” has become
another word for abortion on demand. Respecting the views of a few employers
with religious objections to paying for what they believe to be abortifacients
becomes compelled breeding.

Criminal investigations – something that ought to be
conducted dispassionately – become backdrops for race baiting. Pay no attention to the failed programs
behind the curtain.

Friday, October 03, 2014

I noticed that Purple Wisconsin has added Jeff Simpson as a blogger. I suspect that this won't end well, but I have no other public comment.

Mr. Simpson has decided to attack me and the Wisconsin Institute for Law & Liberty. I have no problem with that. Getting attacked by lefties is not bad for business when you run a conservative/libertarian non-profit and, in any event, everyone should be willing to face criticism. I am not going to respond to his points about Act 10 or the merits of our cases (mostly because he doesn't make any beyond asserting his disapproval), but there are a few - well, actually more than a few - errors to correct.

First, he says that WILL receives the "vast majority" of its funding from the Bradley Foundation. This is not quite right. We began operations in June 2011 with start-up funding from Bradley, so most of our money did come from the Foundation in 2011 and 2012. We needed a record of accomplishment before we could raise much money from others. Now that we have that, Bradley will account for only about 35 % of our revenue in 2014 - which isn't even a "majority." Last year, it was about half which strikes me as decidedly "unvast." The 2013 numbers are in the public domain. If he wanted to know about this year, he could have asked. I'll talk to most people.

And, for the record, the Bradley Foundation - or Mike Grebe - never tells us what to do. They find out what we've done when they read it in the paper.

Second, Mr. Simpson misdescribes the lawsuit we brought against the Kenosha Unified School District. It was not at a "standstill" or "going nowhere" until the composition of the school board changed and we were somehow "handed" victory. The judge had already ruled that we had a substantial probability of success on the merits, i.e., we were likely to win. There was no dispute that the contract between KUSD and the union violated Act 10; only whether Act 10 was constitutional. Last summer, the Supreme Court - like the Seventh Circuit before it - upheld Act 10. In other words, we were right. The school board acted wisely in settling and cutting its losses. (Actually, the union is still fighting, but that's another story.)

Third, in describing our lawsuit against the Madison School District, Mr. Simpson says that Act 10 was "stayed" at the time that the district negotiated non-Act 10 compliant contracts with its unions. No, it wasn't. There was only a declaratory judgment which was ultimately reversed. That did not "stay" or "enjoin" the law.

The district and union are arguing that, by bring a lawsuit that they ultimately lost, the union is entitled to continue to implement two illegal contracts - including one that will not not even go into effect until the beginning of the 2015 school year. That is an extraordinary proposition and someone ought to test it in court.

Fourth, Mr. Simpson seems to believe that we think the problem with the Madison contract is that it gives teachers a .25% raise. Not at all. If school districts comply with Act 10, we have no objection to larger raises. Indeed, one of the things that we like about Act 10 is that it permits school districts to treat teachers like professionals instead of interchangeable cogs in a machine. It allows them to use bonuses and merit pay to reward good teachers - something that unions have traditionally resisted. So, yes, raises - even large ones - for those who deserve it.

In any event, Mr. Simpson ignores the fact that what makes Madison's contract out of compliance with Act 10 is not the size of the base pay increase. It is the provisions for health insurance and pension contributions - both of which cost taxpayers quite a bit of money. It is the negotiation of work rules that protect non-performers and impede flexibility. It is the coerced "agency fee" payments - exacted from teachers who do not wish to financially support the union.

Act 10 limited the circumstances under which the general public could be placed at a disadvantage vis-a-vis public employee unions who could compel secret negotiations with public bodies subject to arbitration in the event of impasse. If I want my school district to cut taxes, fire incompetent teachers or teach the classics and improve STEM education, I don't get those advantages.

Finally, Mr. Simpson says we are "attacking public schools." That would be true only if "public schools" were synonymous with unions and the adults who run the schools. They are not. He wants us to stop wasting "our children's money." (No, I'm not going to razz him for misspelling children. That's tacky and, besides, glass houses and all that.) What we are trying to do is ensure that "our children's money" is well used. Public schools in Wisconsin - and in the US generally - have enjoyed substantial real increases over the past 30-50 years. We spend a lot more on K-12 education than we used to spend and more than just about any other nation on earth. Yet we have not seen corresponding increases in educational attainment or outcomes and we do not compare well with other countries - all of whom seem to do more with less. We don't necessarily want to reduce spending. But we do want to get more for what we spend.

Wednesday, October 01, 2014

The week before last, my wife and I spent a few days in New York. We went to a few shows, including the preview run of - sorry, but he's a big name - James Earl Jones in the reprise of the 1936 Broadway hit "You Can't Take it with You" at the historic Longacre Theatre (48th just past Broadway). I highly recommend it. It starts slow but finishes fast. And Jones' character delivers one of the best takedowns of the abuse of Congress' Commerce Clause powers - really - that I've ever heard. I'll get to it at the end.

What struck me about the play is the way in which we can all find what we want in a work of art. I have a bias here unrelated to politics. My mother was a painter (who did not share my politics). She always insisted, however, that she was not the arbiter of the meaning of her work. She was trying to lay bare something real about the human condition but translating that into politics or rules about how to live in the world went beyond what she had actually done (whatever her intent). She was simply provoking a thought - or illuminating a truth - that could be taken in multiple - even contradictory - directions.

I thought the play to be a libertarian tour-de force. Jones' character is patriarch of the odd Sycamore family - a lovable group of folks who do what they want - write bad plays, dance poorly, make (and sometimes explode) fireworks in the basement - without regard to what others think and even for what makes sense. He won't pay his income tax (because he doesn't "believe in it" and doubts that the federal government will use his money wisely). His eccentric family insists on its freedom to be who it wants to be. I found my political presumptions affirmed.

But others see it differently. Kristine Nielsen, who plays Jones' daughter, says that the play is about -and supportive of - "collectivism." My initial reaction was that Nielsen, who is a good actor, is a lousy historian and political philosopher. Eccentrics and dissidents don't fare well in collectivist societies. When the collective is empowered, then individuals who do not do what the collective wants - whether (as in the collectivist Third Reich), it is to hate the Jews or (as in the collectivist Russia ) it is to be gay - don't fare well. Nielsen can be a great actor and not appreciate the tension between the scope of collective decision-making and individual liberty.

But I see what prompts her to say what she did. In "You Can't Take it with You," one of the endearing things about the Sycamore family is that they care about each other and are open to caring about others. This, according to Nielsen, makes it "collective." She apparently believes that no one needs to be free in how they use their money or make their living as long as they are free in whatever realm the state decides to consider "personal." I think that's demonstrably false but that's not where I want to go here.

My guess is that Nielsen believes that political decision-making - where we get together and vote on who gets what - is an example of us caring about each other, while market decision-making - where we voluntarily enter into exchanges with each other - is not.

There is absolutely no reason to believe this is so. A political decision will only reflect what most of us want. There is no reason to think that it will reflect concern for "all of us" as opposed to most of us or however many among us have managed to use the government to get what we want.

A market system requires one side of a transaction to deliver what the other side wants. No one can coerce anyone to do what he or she does not want to do. If I want someone to give me something, I must give them something. I cannot take it. I must, in that sense, "care" about them.

(I understand that some people will suggest that the government may act to force people to support private interests - crony capitalism. That does happen - particularly where the government is given plenary power to "manage" the economy. But it's not my program.)

The criticism of the market system is that it is not perfect. The existing balance of power - who has what resources including property and talent - might be such that people must "accept" transactions that some observer believes should be more advantageous, i.e., a job that does not pay enough or rent that is "too damn high." Some people believe that political decision-making should be deployed to "improve" market outcomes.

Perhaps. For a variety of reasons, I think that this is mostly - but not always - wrong. But what I do know is that solving the puzzle of when and where the government must intervene is not materially aided by the notion of whether we should "care" about each other. Market economies and those in which the government commands who gets what - and all the points in between - are about how we decide the best way in which people can serve each other.

The eccentric Sycamore family teaches something about opposition to authority. It tells us little about coerced submission to authority which is what political collectivism is.

So here is Jones' character's line about interstate commerce. When IRS collector tries to him why he should pay income taxes, he invokes the government's need to regulate interstate commerce. "There are 48 states," he says, "if it weren't for Interstate Commerce, nothing could get from one state to another."

Grandpa Sycamore's reply: "Why not? Have they got fences ...?"

Yes, I understand why you need federal oversight of interstate commerce. But the notion that, without a significant degree of regulation, nothing "could get" from one place to another is category error.

About Me

I am President and General Counsel of the Wisconsin Institute for Law & Liberty and an adjunct professor of law at Marquette University Law School. The views expressed here are my own and not those of WILL or Marquette. They are offered in my personal capacity.